Ifs and Buts

If the CIA hadn't destroyed those tapes, what would be different?

In the uproar over the destruction by the CIA of taped interrogations of suspected al-Qaida operatives in the aftermath of Sept. 11, we are discovering creative new ways to speculate about past events. The pastime has begun with what should have been done differently—finger-pointing at congressional Democrats who'd been briefed about the tapes and remained silent, or distress over the failure to inform superiors at the CIA or the Bush administration. But here's a different thought experiment: How would the national debate over torture have changed if we'd known about the CIA tapes all along? How would our big terror trials and Supreme Court cases have played out?

Yes, this is also a speculative enterprise, but it's critical to understanding the extent of the CIA's wrongdoing here. And we have a benchmark. When the photos from Abu Ghraib were leaked in 2004, a national uproar ensued. Video of hours of repetitive torture could have had a similarly significant impact—the truism about the power of images holds. If we are right about that—and we think we are—this evidence that has been destroyed would have fundamentally changed the legal and policy backdrop for the war on terror in ways we've only begun to figure out.

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A timeline is instructive; here's a detailed one. (Click here for a text-only version.) These tapes were made sometime during 2002. They were destroyed in November 2005, according to the Washington Post. It's worth asking how the Moussaoui trial, the Jose Padilla trial, and the cases of those detained at Guantanamo Bay would have gone differently if the evidence had been produced in the interim instead of destroyed. Then there's the thinking of the 9/11 Commission. And of Congress, which passed legislation about torture and interrogation in December 2005, without the benefit of tapes that would have illustrated what the lawmakers had just allowed. It's hardly a stretch to say that if these torture tapes had made it to YouTube, Michael Mukasey wouldn't have been parsing and mincing about water boarding this fall.

One of the two men tortured on the CIA tapes is Abu Zubaydah, whose confession supplied the main evidence supporting the warrant issued for Jose Padilla's arrest in May 2002 at O'Hare Airport. Padilla was promptly labeled a "dirty bomber" and an enemy combatant and tossed in a brig for 43 months. When he was finally prosecuted on a conspiracy theory, in a Florida federal court in 2007, Padilla's lawyers claimed Zubaydah had implicated him under torture. The Justice Department dismissed these allegations as "meritless," since there was no proof Zubaydah had been tortured. It's bad enough that the DoJ just "lost" the tapes of Padilla himself being interrogated. It now also seems clear he was first grabbed on the say-so of a crazy person who was willing to say anything to stop the abuse he experienced. One of Padilla's lawyers tells us that if these tapes had been disclosed, it would have been far more likely that the Supreme Court would have taken up the case for a second time, when Padilla tried to go back to the high court in April 2006.

Next: Moussaoui, who, let's not forget, faced the death penalty. The same fall that the CIA tapes were destroyed, according to the Post's timeline, federal district court Judge Leonie Brinkema ordered the government to turn over evidence of specific interrogations relating to the allegations against Moussaoui. His lawyers reportedly wanted to know whether the al-Qaida trio of Zubaydah, Ramzi Binalshibh, and Khalid Sheikh Mohammed had inculpated Moussaoui, or failed to name him. According to the New York Times, CIA lawyers told federal prosecutors that the CIA did not possess any such evidence.

That means the two biggest terror trials we've had since Sept. 11 were predicated on torture evidence that was then destroyed. The government has argued that al-Qaida operatives cannot be tried because the evidence against them is secret and threatens national security. But the real rationale is much worse: The evidence against them is wholly unreliable.

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Now consider the Bush administration's continuing efforts to keep the Guantanamo Bay detainees out of court. In that same fall of 2005, the Supreme Court agreed to hear a dispute over the rights of detainees at Guantanamo. It held later that year that the Geneva Conventions applied at the camp. Meanwhile, no federal court has ever reviewed the factual basis for the continuing detention of more than 300 detainees. In their efforts to get to court, however, the detainees did succeed in winning at least two orders from district court judges in spring and summer 2005 that required the government to preserve all evidence relevant to their cases. In an emergency motion filed this past Sunday, lawyers for the Guantanamo detainees asked for a hearing on the destruction of the tapes. The detainees assert that if the government wrecked those recordings in November 2005, it did so several months after the preservation orders were issued—which would mean those orders were directly violated as well.

When the detainees initially asked for this evidence to be preserved in January 2005, the Bush administration opposed their request, saying "this case is utterly devoid of any circumstances warranting such an order" because "there is no evidence of any document destruction in this instant case" and, in fact, the government had "numerous reasons … for ensuring the preservation of the documents in question." Apparently those reasons weren't good enough for the CIA. Given that the Guantanamo detainees say that many of them were implicated solely on the basis of other prisoners' tortured confessions, video examples of that torture would only have helped them. These defendants have argued all along that the evidence against them has no weight because people say anything under torture. The tapes would have made their point graphically, indisputably, unforgettably.

And what about Congress? When John McCain was trying to pass the anti-torture provisions in the Detainee Treatment Act in that very same fall of 2005, he faced stiff opposition from the White House. It was hard to beat down, and McCain wrestled his law into being only by accepting a "trust us" compromise. The government said it would no longer abuse the detainees, and McCain agreed to accept vague language for his statute rather than sticking closely with the internationally recognizable words that bar torture. This has allowed for all sorts of fuzziness about what is and isn't torture and whether it is or isn't happening. That's what the fight over water-boarding at Attorney General Michael Mukasey's confirmation hearing was all about. With the tapes in hand, perhaps McCain—and the Democrats—would have stuck with first principles and passed a law that clearly adhered to international standards the first time. Maybe if we'd had to watch water-boarding as the CIA practiced it in 2002, on a desperate crazy man spewing science fiction rather than truth, the nonsense that torture is effective would never have found any purchase.

Finally, there's the 9/11 Commission, which made broad-based, far-reaching requests for evidence relating to the attacks, yet wasn't told about the tapes. The commission's 2004 report relies heavily on the accounts of 10 named detainees, among whom are Abu Zubaydah and Abd al-Rahim al-Nashiri, the alleged planner of the 2000 attack on the USS Cole and the second man tortured on the destroyed tapes. The commission called assessing the truth of their statements "challenging." They tried to verify and corroborate the witnesses' statements whenever possible. Still, these accounts are woven into the commission's narrative, and nowhere does the 9/11 report delve into interrogation tactics or make any recommendations about the government's continuing or future practices. That wasn't the commission's mandate. Still, one wonders where video evidence—or the knowledge that such evidence was being withheld—might have led it.

Kevin Drum started asking the questions we are posing over the weekend. He pointed out that the tapes would have revealed "not just that we had brutally tortured an al-Qaeda operative, but that we had brutally tortured an al-Qaeda operative who was (a) unimportant and low-ranking, (b) mentally unstable, (c) had no useful information, and (d) eventually spewed out an endless series of worthless, fantastical 'confessions' under duress." Those confessions, and others like them, have been the underpinning for much of the government's legal assault on the rule of law in recent years, from free and open trials, to secret expansions of executive powers. Certainly Drum is speculating, just like we are. It's impossible to say for sure what the tapes would have revealed, much less how such revelations might have changed all these recent events. But it's worth trying to refit the pieces, because this evidence was deliberately obliterated. Otherwise, the CIA's act of destruction wins.